Eighteen states and D.C. file amicus brief opposing Raffensperger voting rights appeal

Eighteen states and the District of Columbia filed a brief in federal court Tuesday opposing Georgia Secretary of State Brad Raffensperger’s efforts to challenge part of the 1965 Voting Rights Act during the state’s redistricting process last year.

Section 2 of the Voting Rights Act forces states to protect minority communities by banning practices that seek to dilute voting power due to race, and by allowing private citizens and advocacy groups to file lawsuits to combat gerrymandering. It was under this law that three voting rights cases — Alpha Phi Alpha Fraternity, Inc. v. Raffensperger, Pendergrass v. Raffensperger and Grant v. Raffensperger — were able to challenge district lines drawn in 2021 and ultimately force the legislature to redraw the boundaries.

Although it is too late for a ruling to impact district lines for the 2024 elections, Raffensperger’s appeal has made its way to the Eleventh Circuit Court of Appeals, meaning the ruling will affect future elections across Alabama, Florida and Georgia. The appeal effectively challenges the constitutionality of the redistricting mandated under Section 2, prompting the coalition of 19 attorneys general to file their brief urging the Eleventh Circuit to uphold the lower court's decision. 

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“Section 2 of the Voting Rights Act is a critical tool to ensure that every citizen can participate equally in our democracy, regardless of race,” D.C. Attorney General Brian Schwalb said in a press release. “Section 2 is plainly constitutional, and dozens of courts—including the Supreme Court—have ruled that there is a private right of action to enforce it. The claims advanced by Georgia’s Secretary of State run roughshod over democratic protections, have no basis in law or fact, and should be soundly rejected.”

Raffensperger’s office declined to comment, citing pending litigation.

Incremental weakening of the 1965 Voting Rights Act

Although it remains a pivotal piece of civil rights legislation, protections under the Voting Rights Act have been repeatedly weakened in recent years. In 2013, the Supreme Court struck down a provision that required states with a history of disenfranchising voters of color to receive preclearance from the federal government before making changes to their election laws. Under current law, Section 2 serves as the only real avenue for citizens to enforce their voting rights.

In November, a federal appeals court for the eighth circuit ruled that private individuals and groups can no longer sue under Section 2 of the Voting Rights Act, arguing that the law did not specifically outline the right of private citizens to enforce the statute. Under the ruling, which applies to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, only the U.S. attorney general can pursue voting rights complaints. In December, the ACLU filed a petition asking the eighth circuit to rehear the case en banc, but was ultimately denied.

“Ever since the Supreme Court basically gutted the preclearance provision of the Voting Rights Act, there's been a concern that the rest of the Voting Rights Act could also fall,” said ACLU of Georgia Executive Director Andrea Young. "What prompts the response of attorneys general in other states is this concern that the part of the Voting Rights Act that allows independent groups like the ACLU or Alpha Phi Alpha to challenge the actions under the Voting Rights Act also would be put out of reach.”

A similar outcome in the eleventh circuit would gut voting rights protections across the three additional states that fall under the eleventh circuit. Had the eighth circuit court ruling applied to Georgia, none of the three cases mentioned in the redistricting hearing would have been allowed to move forward.

A new piece of legislation that would restore and modernize certain protections under the Voting Rights Act has been introduced in Congress but has repeatedly been stalled by Republican legislators.

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The brief emphasizes the importance of allowing individuals and advocacy organizations to challenge gerrymandered districts, noting that the overwhelming majority of voting rights cases are brought by individuals rather than the federal government.

“Private citizens have sued to enforce Section 2 since it was enacted, and every court except for one has ruled that they have this power," it reads. "Section 2 is the nation’s primary tool to combat racially discriminatory election practices, and the attorneys general recognize the importance these private lawsuits play in fighting for equal voting rights.”

A court date for the appeal has not been set.

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Read the full text of the brief below.

Maya Homan is an election reporting fellow. You can reach her at MHoman@gannett.com.

This article originally appeared on Savannah Morning News: Voting rights: States file brief opposing Georgia redistricting appeal